Filed 7/13/17 P. v. Gardner CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM CARL GARDNER III,

Defendant and Appellant.
C078066

(Super. Ct. No. CRF140014)




A jury convicted defendant William Carl Gardner III of (count 1) first degree murder, (count 2) stalking after having been convicted of felony domestic violence, (count 3) possession of a firearm by a person previously convicted of a felony, (count 4) stalking, (count 5) threatening to commit a crime resulting in death or great bodily injury, and (count 6) vandalism. The jury also found true allegations that defendant intentionally and personally discharged a firearm causing great bodily injury in the commission of the murder, that the murder was committed while defendant was released on bail, that the murder was committed by means of lying in wait, that the murder was committed to prevent the victim from being a witness against the defendant, that the firearm possession was committed while defendant was released on bail, and that the stalking, criminal threats, and vandalism were committed while defendant was released on bail.
The trial court sentenced defendant to life without the possibility of parole, plus 25 years to life, plus eight years four months.
Defendant argues the trial court erred in denying his Marsden motions without adequate inquiry, and improperly admitted evidence of prior acts of domestic violence resulting in denial of his due process rights. We find no error and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Counts 4, 5, and 6 (stalking, criminal threats, & vandalism) are based on the events of January 13, 2014. On January 13, 2014, City of Winters Police Officer Gordon Brown was dispatched to a residence on Colby Lane to follow up on a report of an ex-boyfriend knocking on, then breaking windows. He had been informed that the suspect drove a black Mercedes. As he was driving to the residence, he saw a black vehicle that failed to stop at a stop sign. He stopped the vehicle, which was being driven by defendant. He then went on to the Colby Lane address, where he saw a vehicle parked in the driveway with the rear window completely broken out. The vehicle’s windshield had also been damaged, and the front window of the residence had been broken out. The front door had been damaged as a result of being kicked and struck.
Inside the residence was Leslie Pinkston, her mother, Carla C., and Pinkston’s very young daughter. Pinkston told Brown that defendant had been her boyfriend, and that they had just broken up because he accused her of cheating on him. Defendant had been sending Pinkston text messages in which he threatened to hurt or kill her. One of the text messages said, “Fuck your life. I hope you die, bitch. You’re a lie, and I’ll kill your bitch ass for all your lying and fake shit, bitch.” Pinkston wanted charges filed for vandalism and the threats, and asked for an emergency protective order. Brown served the protective order on defendant in the booking room at Winters Police Department. Pinkston moved out of the residence the next morning and never returned to that house.
A couple of months later in March, Emily Back, Pinkston’s best friend, went to see Pinkston at the electrical company where Pinkston worked. Pinkston and defendant were there, even though the protective order was still in place. Pinkston was grabbing her chest, which was red, and she looked terrified. Defendant finally left after Back told him she was going to call the police if he did not leave.
In July 2013, defendant sent a text message to Pinkston that read: “Man, Leslie, I’ma murder you, bitch . . . . [¶] . . . [¶] . . . Fuck your life, bitch. I fucking hate you. I don’t care who fucking knows.” Later the same day defendant sent Pinkston a text saying, “For six months you said you’d help me out with my case and still nothing. I know he lives close to you, and I want to kill both of you. I’m back to feeling like I hate everything about you, and I know you’re recording any message and text message I’ve been sending you like this only to destroy me even more. I think I should kill you.”
During defendant’s time in custody at the Yolo County jail, he made 1,005 phone calls to Pinkston, only one of which she answered.
Pinkston began dating Keilan Johnson in September 2013. On November 16, 2013, at about 3:00 or 4:00 a.m., defendant sent Johnson a text containing nude photographs of defendant and Pinkston. Defendant then called Johnson and they talked. That night, Pinkston forwarded one of defendant’s text messages to Johnson. The message read: “You fucking slut, white bitch. Fuck you, tramp. I hope you die. I’m going to send your pictures out. Watch how you fucked up when you cross me, bitch. I’m on my way out there now, bitch. Watch me.” The next morning, November 17, defendant started sending Johnson threatening texts.
The next day, November 18, defendant called Nicole Bewley to come and pick him up in her van. In the van he directed her to get on the freeway and head toward San Francisco. Eventually, he directed her off the freeway to a town and finally to a parking lot. After texting someone on the phone, defendant left the van, telling Bewley he would be back in a minute.
That same morning, David Barbosa, who was at his office in downtown Winters about 150 yards from the electrical company where Pinkston worked, was taking the trash from his office to the dumpster in the parking lot. He heard what sounded like a muffled scream, but he could not tell where it was coming from. Shortly thereafter he heard a pop, but there was a motorcycle going by, and he assumed it had backfired. A second later he heard a scream. He looked in the direction of the screaming and saw Pinkston trying to get out of the driver’s seat of her vehicle. He then heard two more pops, the driver’s side window shattered, Pinkston fell over on the seat, and the gunman got out of the rear driver’s side seat. Defendant walked toward Barbosa, they locked eyes, then defendant started running in a different direction. Barbosa was able to identify defendant in court. Barbosa called 911 and ran to Pinkston.
At about the same time Leonor Solorio was driving back from the bank when she noticed the door of Pinkston’s car, “being struggled to open . . . .” The door shut on Pinkston’s foot, and she cried, “ow.” Pinkston was in the driver’s seat and there was someone behind her, holding an arm across her chest while she struggled to open the door. Solorio made eye contact with Pinkston and could tell that Pinkston looked scared. Solorio heard three gunshots and saw gun smoke. Solorio saw defendant get out of the car. She called 911 as soon as she got to her office.
Bewley, who was waiting for defendant in her van in the parking lot, heard gunshots and a woman screaming. Shortly after the screaming and the gunshots, defendant got back into Bewley’s van. He said “let’s get out of here.” When she did not move fast enough, he said, “hurry up, let’s get out of here, let’s go, let’s go.” He would not let her go or look to the left, but directed her to the right out of the lot. He kept hurrying her along, and she was starting to put together the gunshots, hurrying, and not being able to look in a certain direction. He was acting different than he had ever acted before.
Pinkston died of a gunshot wound to the head. She also suffered a non-fatal gunshot wound to the right knee.
In an attempt to locate defendant, officers went to the home of Lovie James in Sacramento. Officers looked through James’s phone and found several text messages from defendant that had been sent before the murder. They stated that defendant wanted his brother to have his clothes and directed James to the location of pawn receipts for jewelry. The messages directed James to where defendant had leased his car and stated that the tags were two months behind. He gave James his driver’s license number and the last four digits of his social security number. He said, “[y]ou’ll have to figure all the other out.” The series of texts ended about an hour before the murder. Also shortly after the murder, defendant updated his Facebook status to say, “It’s been real.” The day after the shooting, he updated his Facebook page to say, “The end justify the means.”
Authorities received a tip that defendant could be located in Las Vegas. Defendant was eventually taken into custody there. A search of the apartment where he was found produced a .9-millimeter semi-automatic handgun. Cartridge casings found in Pinkston’s car were fired from the handgun recovered in the Las Vegas apartment where defendant was found.
The jury found defendant guilty of all charges, and found all special allegations true. The trial court sentenced defendant to life without the possibility of parole plus 25 years to life plus 8 years 4 months.
DISCUSSION
I
Court Properly Denied Marsden Motion
Defendant twice raised a Marsden motion below. He now claims the court’s inquiries were inadequate, particularly as to counsel’s trial preparation and willingness to prepare for trial. At the first Marsden hearing, held prior to the start of trial, defendant argued his attorney had not let him go over all the charges, reports, and discovery. Defendant also believed his attorney was leaking information to the prosecutor. He also claimed he had asked for things that his attorney never got for him, like information as to how many hidden cameras there were in a specific area of Winters. Defendant claimed his attorney had discovery in the form of hundreds of CD’s and had only played three for him. He stated he had met with his attorney’s paralegal five times and with his attorney 16 or 17 times. He also complained that his attorney had not filed a motion for change of venue.
The court gave defendant’s trial counsel a chance to answer defendant’s complaints. Counsel recapped the evidence against defendant and said it was “very, very strong.” He said every time he visited defendant he asked defendant to tell him what had happened, and every time defendant refused to say what had happened. Instead, defendant wanted a lie detector test and wanted to see the autopsy reports to see if a vaginal examination of the victim showed there had been intercourse with her employer. Counsel said he had tried to get most of the discovery to defendant, but none of the things defendant asked for was relevant to prove a defense.
Defense counsel stated that when defendant told him he had really been planning a murder-suicide; counsel had a psychiatrist see defendant. Two psychiatrists interviewed defendant and both indicated there was no mental impairment that would amount to a legal defense. Counsel said defendant wanted to know if there was a search warrant for the gun, and counsel pointed out defendant had no standing to raise the issue because he was not a resident of the apartment where police found him. Counsel had considered a motion for change of venue, but decided against it when the news media quieted down. Counsel stated he had never disclosed a confidence to the district attorney. As to the CD’s, counsel stated there was a lot of irrelevant information on them and they had been difficult to redact, and that when he had papers and CD’s to show defendant, defendant had refused to meet with him.
Counsel said that defendant was paranoid, and believed that when he visited defendant, the air vents were giving information to the jail. Counsel stated he thought the only possible defense to the case was to say that all of the planning defendant did was so he could kill himself in front of Pinkston, and that something happened at the last minute that made him turn the gun on her instead, resulting in a crime of passion. The court confirmed that defense counsel had 46 years of experience and 40 years as a defense lawyer, and had tried around 20 homicide cases.
After giving defendant another chance to speak, the court stated: “The comments and concerns of Mr. Gardner do not rise to the level of good cause to remove [counsel]. From what I’ve heard, I cannot reach a conclusion that [counsel] has been ineffectively representing Mr. Gardner, or that Mr. Gardner’s right to counsel is substantially impaired. For those reasons, I deny the Marsden motion.”
A few days later, defendant brought another Marsden motion before the trial judge. Defendant’s concern was that he had just seen a motion to admit prior acts of domestic violence, and he had known nothing about it, even though it had been filed months before. Defendant also repeated issues raised in his earlier Marsden motion.
Trial counsel stated that he had given defendant every page of prior conduct evidence that had been received. Because defendant had never asked to see the legal motions in the case, he had not shown defendant the motion to admit the evidence. Counsel explained again that he had never been able to get defendant to focus on and explain the events of the shooting. Counsel believed the only viable defense was that defendant had intended a suicide rather than a murder, but defendant would not tell him what happened that day, and instead became obsessed with other issues. Counsel stated: “I never tried to hide anything from him, but I did feel that he was consciously changing the subject and wanting us to do things that don’t get to the heart of his defense. At the same time, he says to me, essentially, that he does have a defense, that his purpose was not to inflict harm on her. And that’s me reading into what he’s saying, but he won’t expand. So that’s where we’re at.”
The court ordered defendant and counsel to meet to go over discovery, then meet back in court. They met before the court two days later. The court asked defendant if he had any more to say. Defendant complained that there had been no DNA tests, and that there had been no defense investigation to uncover things that could be used toward his defense. Counsel explained again that he had no idea what defendant would say if called to testify, but that he was prepared to proceed anyway, and that he would continue to send defendant discovery.
The court advised defendant it was his right to testify, and that it would be in his best interest to tell his attorney what his position was. The court stated that it is the attorney’s call as a matter of trial tactics what, if any, discovery to share because of the attorney’s understanding of what evidence is relevant. The court said there appeared to be a lot of information, but that it was not information that would ultimately affect a legitimate presentation of the defense. The court ruled that the disagreements defendant had with his counsel were about trial tactics, and found no justification for excusing counsel.
When a criminal defendant makes a Marsden motion, “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance.” (People v. Smith (2003) 30 Cal.4th 581, 604.) The defendant must clearly show that counsel’s representation is inadequate. (Ibid.) The decision to substitute new counsel lies within the trial court’s discretion, which discretion is not abused unless “the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” (Ibid.)
Citing People v. Cruz (1978) 83 Cal.App.3d 308, defendant argues the trial court did not adequately inquire of counsel regarding his review of discovery, his investigation efforts, or his trial preparation. People v. Cruz held that the trial court has an obligation to listen to a defendant’s reasons for claiming inadequate representation and make an inquiry into the state of mind of the court-appointed attorney. (Id. at p. 316.) People v. Cruz held that the trial court abused its discretion where the defendant asserted a conflict of interest with the entire public defender’s office and the trial court did not inquire into the particulars of the claim and “failed completely to ask . . . the public defender . . . to respond to the charges.” (Id. at p. 317.)
Here, the trial court questioned defendant in detail as to his many complaints, and, unlike People v. Cruz, asked trial counsel to respond to all of defendant’s charges. As to the review of discovery, counsel acknowledged that defendant had made constant requests for discovery, and counsel said he had tried to get most of the discovery to defendant, but that given the state of the evidence, nothing in the discovery provided a defense. As to counsel’s investigation efforts, counsel stated he had sent an investigator to the town of Winters to talk to people, but that as soon as the investigator explained for whom she was working, people refused to talk to her. As to counsel’s preparation, counsel demonstrated an excellent command of the facts of the case, and stated repeatedly that his difficulty in preparing a defense was due to the defendant’s refusal to talk to him about the events on the day of the shooting.
The trial court fulfilled its obligation of inquiry, and did not abuse its discretion in denying the Marsden motions.
II
Evidence of Prior Domestic Violence
Defendant argues the trial court abused its discretion by admitting evidence of his prior domestic violence under Evidence Code section 1109. He further argues the admission of such evidence violated the federal Constitution. We shall conclude the trial court did not abuse its discretion, and that there was no constitutional violation.
Although character or propensity evidence is usually inadmissible to prove a person’s conduct on a specific occasion, the Legislature has created an exception to the general rule in cases involving, inter alia, domestic violence. (People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) As is relevant, Evidence Code section 1109, subdivision (a)(1) provides that “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” Evidence Code section 352 limits the admissibility of evidence of prior conduct if its probative value is substantially outweighed by its prejudicial effect. Admission of evidence of prior acts of domestic violence is subject to the sound discretion of the trial court, which discretion we will not disturb on appeal absent a showing of abuse. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)
The prosecutor attempted to introduce seven prior acts of domestic abuse. In evaluating the probative nature of the proffered evidence, the trial court considered whether the incidents were recent, whether they occurred during the time defendant had a relationship with the victim, and whether there was corroboration for the prior acts. The trial court eventually allowed three of the incidents to be admitted into evidence.
The first incident occurred in September 2010 against Lanee B., who worked for defendant as a prostitute. She testified that they argued, and defendant grabbed her head and pushed her into a pole, causing a two-inch laceration that necessitated 10 staples in her head.
The second incident occurred in August 2011 against Destiny A. Destiny A. was defendant’s girlfriend, and he beat her up. When Destiny A.’s friend tried to call the authorities, defendant told her to stop or he would kill her.
The third and final incident occurred in January 2013 against Jessica A. Jessica A. had just begun dating defendant when he pushed her against a wall. She claimed it was nothing serious. Her mother was there and stopped defendant. Jessica A. never reported the incident.
Defendant claims that there was no question that he was the person who shot Pinkston, nor was there any question that he sent her “hundreds of text messages” and made “scores of calls” to Pinkston shortly before he killed her. He argues the only issues with respect to the killing were whether he acted with premeditation, whether he killed Pinkston to prevent her from testifying against him, and whether he had lain in wait. He argues his prior acts of domestic violence should not have been admitted because his propensity to assault his former girlfriends did not bear on these issues.
Similarly, he claims that as to the January 2013 events, there is no question that he “sent the texts, made the calls, issued the threats, and damaged the house and car.” Thus, he argues, his propensity to domestic violence was of no probative value.
When, as here, there is a claim that the trial court abused its discretion under Evidence Code section 352 when it admitted evidence, we determine: (1) whether the challenged evidence was relevant, and (2) whether the trial court abused its discretion in finding that the probative value of the evidence was not substantially outweighed by the substantial danger of undue prejudice. (People v. Heard (2003) 31 Cal.4th 946, 972.) Defendant argues that because the evidence was not relevant to a disputed factual issue, its probative value was nonexistent, and it was an abuse of discretion to admit the evidence.
Defendant is incorrect in his assertion that the evidence of prior acts of domestic violence were irrelevant to the charge that he murdered his ex-girlfriend. “[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.” (Patterson v. New York (1977) 432 U.S. 197, 210 [53 L.Ed.2d 281].) One of the elements the prosecution is required to prove is malice aforethought. Thus, the prior acts are relevant because “a defendant’s propensity to commit domestic violence against a former girlfriend who was murdered, and other prior girlfriends who were assaulted, is relevant and probative to an element of murder, ‘namely, [defendant’s] intentional doing of an act with malice aforethought that resulted in the victim’s death.’ [Citation.]” (People v. Brown (2011) 192 Cal.App.4th 1222, 1237.) “A defendant’s pattern of prior acts of domestic violence logically leads to the inference of malice aforethought and culpability for murder.” (Ibid.)
The evidence was thus relevant. As such it was for the trial court to determine whether its probative value outweighed its possible prejudicial effect. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) We will not disturb the trial court’s exercise of discretion absent a clear showing of abuse. (Ibid.) In this case, the prior incidents were not remote in time and were not more inflammatory than the charged offense of murder. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 706.) Defendant has not made a clear showing of abuse of discretion.
Defendant argues the admission of evidence of uncharged acts of domestic violence violated his due process rights under the Fourteenth Amendment of the Constitution.
“The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913.) Defendant recognizes that Falsetta rejected the same due process argument he makes, and that this court is bound by the decision in Falsetta. Defendant raises the argument to preserve it for review.
We have held that the admission of evidence under Evidence Code section 1109 does not violate due process. (People v. Johnson (2000) 77 Cal.App.4th 410.) Defendant has offered no reason to depart from our prior decision.
DISPOSITION
The judgment is affirmed.



/s/
Blease, Acting P. J.


We concur:



/s/
Hull, J.



/s/
Hoch, J.